Maryland’s top court rules that police can’t search a person based on marijuana smell alone

The Court of Appeals of Maryland, the highest-ranking court in the state, said in a ruling this week — which opened by quoting Bob Dylan singing “the times they are a-changin'” — that police are not justified in searching a person based solely off of the smell of marijuana.

The 7-0 ruling stemmed from a 2016 case in which a man named Michael Pacheco was searched by police and later arrested for cocaine possession after they smelled pot near his car.

{mosads}During the incident, two officers, identified in court documents as Groger and Heffley, were conducting a “routine foot patrol” in Wheaton, Md., when they noticed Pacheco alone in a “dark parking spot” behind a laundromat, the court’s 27-page opinion states.

After growing suspicion of the idea of someone sitting “in his or her car rather than in the laundromat, which was open at the time,” the officers decided to approach the vehicle.

Upon approaching Pacheco’s car, the officers said that they smelled “fresh burnt” marijuana.

Court documents said that shortly after, Heffley noticed a “marijuana cigarette in the vehicle’s center console, which he testified he knew immediately was less than ten grams.” A law passed in Maryland decriminalized possession of pot by up to 10 grams in 2014.

Officers then ordered Pacheco to exit the vehicle and searched him, court documents state, discovering cocaine in one of his pockets. The officers then searched his vehicle, in which they found a marijuana stem and packets of rolling papers.

Pacheco was arrested immediately and issued a citation for possessing less than ten grams of marijuana and charged with possession of cocaine with intent to distribute it. 

“Pacheco moved to suppress the cocaine, arguing that the officers’ warrantless search of his person was illegal because, at the time of the search, the officers lacked probable cause to believe that he possessed ten grams or more of marijuana,” court documents state. “The State countered that the odor ‘provided probable cause to search ‘both the vehicle and [Mr. Pacheco].’”

But the circuit court denied Pacheco’s move to suppress the cocaine, stating it was discovered with “probable cause” given his possession of weed.

However, the state’s Court of Appeals ruled that the “same facts and circumstances that justify a search of an automobile do not necessarily justify an arrest and search incident thereto.” 

“In the post-decriminalization era, the mere odor of marijuana coupled with possession of what is clearly less than ten grams of marijuana, absent other circumstances, does not grant officers probable cause to effectuate an arrest and conduct a search incident thereto,” the court stated in the ruling.

“It is well established that individuals have a heighted expectation of privacy in their person as compared to their automobile, meaning the probable cause analysis for the search incident to arrest exception versus the automobile exception will often differ given the respective justifications for those exceptions and the facts and circumstances of each case,” it added.